Rev. Maussagolle Dharmarakkitha Thero and Another vs
Registrar of Lands and Others
REV. MAUSSAGOLLE DHARMARAKKITHA THERO AND ANOTHERvs
REGISTRAR OF LANDS AND OTHERSCOURT OF APPEAL.
SRIPAVAN, J AND.
SISIRADE ABREW, J.
MARCH 17, 2005.
Writs of certiorari and mandamus -Registration of Documents Ordinance,sections 26(1) and 36(1 )(a), 38 -Alienation of Sangika property – Refusal byRegistrar to register deed -Alternative remedy not exercised – Maintainabilityof the application ? – Laches ? – Is it fatal ? Sangika property – Gihi Santhakaproperty – Distinction
One N donated the property in question to the 2nd petitioner – priest (P1):the 2nd petitioner priest donated the said property to the 1st petitioner priest(P4) both deeds were attested by the 3rd respondent; when the 3rd Respondentpresented the latter deed (PA) for registration the Registrar acting under section36(a) of the Registration of Documents Ordinance refused to register the saiddeed.
The petitioner sought to quash the said decision of the 1st respondent,Registrar of Lands and further sought a writ of mandamus compelling the 1strespondent to register the said deed.
Held:When N gifted the property by P1 she gifted the property to the 2ndpetitioner and the Maha Sanga as Sangika property as per the deed ;as the 2nd petitioner derived his title from deed P1 the respondentRegistrar of Lands could refuse to register the said deed under section36(1 )(a). The 1st respondent had reasons to suspect that the personwho presented P4 for registration was not a person who was authorizedby the Ordinance.
The petitioner had a right of appeal against the decision of the 1strespondent -section 38(1). The petitioners have not used the alternativeremedy -it is fatal. The petitioners have slept over their rights for 8 1/2years.
Sangika dedication is not the only mode of acquisition of property of atemple. A temple could acquire property by the ordinary modes ofacquistion without a ceremony conducted according to the Vinaya.
Sri Lanka Law Reports
(2005) 3 Sri L R.
APPLICATION for a writ of certiorari/mandamus,
Cases referred to:Gunasekera vs. Weerakoon 73 NLR 262
Baldwin & Francis Ltd vs. Patent Appeal Tribunal and others (1959) 2ALL 433
Rodrigo vs. Municipal Coundil of Galle 49 NLR 89
Obeysekera vs. Abeysekera and Others 78-79 2 SLR 220
Jayaratne vs. Assistant Commissioner of Agrarian Services 1996 2Sri LR 70
Sarath Hulangamuwa vs. Siriwardane -Principal, Vishaka Vidyalayaand another 1986 1 Sri LR 275
Biso Menika vs. Cyril Alwis (1982) 1 Sri LR 368
Hopman and others vs. Minister of Lands and Land Development andothers 1994 2 Sri LR 240
Regina vs. Aston University Senate (1969)2 Q'3538 at 555
Kampane Gunarate Thero vs Mawadawila Pannasena Thero 1998 2• Sri LR 196
Ven. Omare Dharmapala Thero vs. Rajapaksage and others 2004 1Sri LR 1
Chandraratne for Petitioner,
M. N. Idroos, State Counsel for respondent.
Cur. adv. vult.
May 02,2005SISIRADE ABREW J.
This is an application for writs of certiorari and mandamus. Facts of thiscase may be summarized as follows :
Baba Nona, by deed No. 3000 dated 15th March 1994 attested by the3rd respondent marked PI, donated the property described in the saiddeed to the 2nd Petitioner who was a priest. The 2nd Petitioner by deedNo. 3062 dated 01 st February 1995 attested by the 3rd Respondent markedP4, donated the said property to the 1st Petitioner. When the 3rdRespondent, the Notary Public, presented P4 for registration the 1strespondent, the Registrar of Lands, Gampaha, acting under section 36(1 )(a)of the Registration of Documents Ordnance hereinafter referred to as the('said Ordinance’) refused to register the deed P4. The 1st Respondent
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Registrar of Lands and Others (Sisira de Abrew J.j
communicated his decision to the 3rd Respondent by his letter dated
(P8). The Petitioners are now seeking to quash the said decisionof the 1st Respondent contained in P8 by way of a writ of certiorari. Thepetitioners are also seeking a writ of mandamus compelling the 1st"Respondent to register the said deed P4 in the relevant registers of theLand Registry of Gampaha.
It is necessary to examine section 36 (1) (a) of the said Ordinancesince the 1st Respondent has acted under this section. Section 36(1 )(a)of the said Ordinance reads as follows:
“A registrar may, if he thinks fit, refuse to register an instrument,
Where he has reason to suspect that the person presenting theInstrument for registration is not a person who is authorized by thisOrdinance to present it for registration, until such person proveshis right to present it for registration”.
“A person who is authorized by the Ordinance” is described in section26(1) of the said Ordinance. Section 26(1) of the said Ordinance reads asfollows:
“An instrument may be presented for registration by
any person executing the instrument:
any person claiming any interest or benefits thereunder
any person having any interest in or charge on any property affectedthereby; or
the agent of any such person or an Attorney-at-Law or Notary,acting on behalf of any such person.”
In the case before us the 2nd Petitioner is the donor and the 1 st Petitioneris the donee of the property described in P4. Therefore Petitioners can becategorized as persons described in paragraphs (a), (b) and (c) of section26(1) of the said Ordinance. When the 3rd Respondent, the Notary Publicpresented the deed for registration it is clear that he acted on behalf of the1 st and the 2nd Petitioners. This position is very clear when section 26 (1)
. of the said Ordinance is examined. It is now necessary to consider whetherthe 1 st Respondent had reasons to suspect that the person, who presentedthe deed marked P4.for registration, was not a person who was authorizedby the said Ordinance.
Sri Lanka Law Reports
(2005) 3 Sri L. R.
At the hearing of this application, learned Counsel for the Petitionersand the Respondents admitted that Sangika Property cannot be alienatedwhich is the true position. When Baba Nona gifted the property by deedmarked P1, she gifted the property to the 2nd Petitioner and Maha Sangaas Sangika Property. This conveyance is written in the deed marked P4.According to deed No. 3062 (P4) the registration of which was refused bythe 1st Respondent, the 2nd Petitioner derived title to the property fromdeed marked P1. According to P1 Baba Nona gifted the property to the2nd Petitioner and Maha Sanga. Considering these facts, when deed P4was presented for registration, the 1st Respondent had reasons to believethat this property was Sangika property and as such he (the 1 st Respondent)had reasons to suspect that the 3rd respondent who presented P4 forregistration, was not a person authorized by this Ordinance.
When the 1st Respondent had reasons to suspect that the 3rdRespondent was not authorized to present P4 for registration ; speciallyafter P8, the letter refusing registration, was sent to the 3rd Respondent,it becomes the duty of the 3rd Respondent who acted on behalf of the 1 stand the 2nd Petitioners to prove his right to present deed P4 for registration.There in no evidence before this Court that the 3rd Respondent provedsuch right.
In view of the above facts, I hold that the refusal by the 1 st Respondentto register deed P4 in the relevant registers of the Land Registry, whichdecision is contained in P8, is correct and the 1st Respondent has actedwithin the ambit of Law. Therefore the Petition of the Petitioners should failon this ground alone.
The Petitioners had a right of appeal against the decision of the 1stRespondent contained in P8. This right has been given to them undersection 38(1) of the said Ordinance. The learned Counsel for the Petitionerscontended that the Petitioners were unaware of the decision made by the1st Respondent refusing to register the deed P4. The Commissioner ofBuddhist Affairs, by his letter dated 16.06.1995 marked P7, informed the3rd Respondent a copy of which was sent to the 1 st Petitioner that transferof property by deed No. 3062 (P4) could not be approved since the propertywas Sangika property. The petitioners, in their petition have admitted thisposition. Therefore it is safe to conclude that the 1 st petitioner was awareof the decision of the Commissioner of Buddhist Affairs who is the 2ndrespondent. Then it was within the knowledge of the 1 st Petitioner that the
CARev. Maussagolle Dharmarakkitha Thero and Another vs■ • 7
Registrar ot Lands and Others (Sisira de Abrew J.)
1 st Respondent was going to refuse the registration of deed P4. For thesereasons, I am unable to agree with the above contention of the learnedCounsel for the Petitioners.
In view of the above facts it is clear that the Petitioners have not usedthe right of appeal given to them under section 38 (1) of the said Ordinance.The Petitioners have, therefore, not used the alternative remedy availableto them.
In the case of Gunasekera Vs. Weerakoon' th'e petitioner applied forwrits of certiorari and mandamus to enhance the compensation awardedto him seven months after the impugned decision. Sirimanna J held thatthe application should be refused because (a) the petitioner was guilty ofundue delay in making the application ; and (b) the petitioner had analternative remedy.
In the House of Lords Case of Baldwin & Francis Ltd. Vs. PatentsAppeal Tribunal and Others Lord Denning remarked as follows:
“I am prepared to assume that the appellants are aggrieved, but
as they have another remedy open to them, the Court in its discretion,
should refuse a certiorari”.
In the case of Rodrigo l/s. The Municipal Council Galle it was held thatthe writ of mandamus would not lie for the reason that the petitioner hadan equally effective remedy by civil action.
In the case of Obeysekera Vs. Abeysekera & others' Soza J. statedthat “certiorari is a discretionary remedy and will not normally be grantedunless and until the plaintiff has exhausted other remedies reasonablyavailable and equally appropriate”.
Since the Petitioners have not made use of the alternative remedyavailable to them, I hold that the Petitioners are not entitled to the reliefclaimed.
The petition of the Petitioners was first filed in this Court on 20.05.2004.The petitioners, by this application, seek to quash a decision taken in July1995 (P8). Thus the Petitioners have invoked the jurisdiction of this Courtafter a lapse of 8 1/2 years. Therefore it is necessary to consider whether
Sri Lanka Law Reports
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the Petitioners are guilty of undue delay. The 1st Petitioner alleges thatthe delay in filing this application was due to his studies. He completedhis Post Graduate Diploma in 1998; and followed a masters degree during1998 to 2000. From 2000 to 2003 he was engaged in Thripitaka Dharmaand meditation^ As pointed out earlier when Commissioner of BuddhistAffairs informed him by letter dated 16.06.1995 (P7) that the transfer ofproperty by deed No. 3062 (P4) could not be approved; it was within hisknowledge that the 1 st respondent was going to refuse the registration ofthe deed (P4).
In view of the above facts it is difficult to believe that he was unaware ofthe decision of the 1st Respondent. On receipt of P7, the 1st Petitionerwould have made inquiries from the 3rd Respondent, for that matter I muststate here that any ordinary person would have made inquiries from theNotary Public. There is no evidence before this Court that in the year of1995 he was engaged in studies. Then the question arises why he did notmove this Court to quash the decision of the 1st respondent during thelatter part of the year 1995.1 am unable to agree with the contention thatthe 1 st Petitioner could not come to this Court due to his studies. In myview, the 1 st Petitioner has slept over his rights for 8112 years. No evidencewhatsoever was placed before this Court to justify the delay on the part ofthe 2nd Petitioner. For the above reasons, I hold that the Petitioners areguilty of undue delay. In the case of Jayaweera Vs. Assistant Commissionerof Agrarian Services Jayasuriya J. remarked, “A petitioner who is seekingrelief of a writ of certiorari is not entitled to relief as a matter of course, asa matter right or as a matter of routine. Even if he is entitled to relief, stillthe Court has a discretion to deny him relief having regard to his conduct,delay laches, waiver, submission to jurisdiction-are still valid impedimentswhich stand against the grant of relief'. Jayasuriya J. refused the applicationfor writ of certiorari as there was a delay of over 2 112 years since makingthe orderchallenged.
In the case of Sarath Hulangamuwa vs. Siriwardena, Principal VisakhaVidyalaya & Others Petitioner made an application for writs of certiorariand mandamus seeking to quash orders refusing the application of thepetitioner to admit his child to Visakha Vidyalaya and for an order directingthe respondents to admit the child to the school. The application for writsof certiorari and mandamus was made 10 months after the refusal. SivaSelliah J. observed that there has been undue delay in the making of theapplication and the Court cannot possibly make an order which manifestly
Rev. Maussagotte Dharmarakkitha Them and Another vs
Registrar of Lands and Others (Sisira de Abrew J.)
cannot be carried out as the child will be over aged for the Kindergartenand has already been accommodated at Bishop’s College.
In the case of Gunawardena Vs. Weerakoort (supra) one of the reasonsto refuse the application for writ of certiorari and mandamus was the sevenmonths delay. In Biso Menika Vs. Cyril de Alwis Sharvananda J. held,that “writ of certiorari lies at the discretion of Court and will not be deniedif the proceedings were a nullity ; even if there is delay especially wheredenial of the writ is likely to cause great injustice; it will be issued”. Itwould therefore be seen that delay will not operate as a bar to the issue ofwrit of certiorari or mandamus if the impugned decision is a nullity. KulatungaJ. in the case of Hopman and Others Vs. Minister of Lands and LandDevelopment and Others did not follow the decision in Biso Menika’scase (supra) and upheld the objection of undue delay since the impugneddecision was not a nullity. In this judgment, I have, else where, held thatthe refusal by the 1st respondent to register the deed P4 (impugneddecision) is correct and the 1st respondent had acted within the law.Therefore the decision in Biso Menika’s case (supra) has no applicationhere. Since the Petitioners are guilty of undue delay the application of thePetitioners should fail on this ground alone.
I have earlier pointed out that the petitioners have slept over their rights.In the case of Regina vs. Aston University Senate at 555 Donaldson J(Lord Parker CJ and Blain J agreeing) held that “the prerogative remediesare exceptional in their nature and should not be made available to thosewho sleep upon their rights.” Applying the aforementioned legal principleto the facts of the present case, I hold that the prerogative writs applied forare not available to the petitioners who have slept over their rights.
The learned Counsel for the Petitioners contended that the refusal toregister the deed P4 by the 1st Respondent on the purported ground ofSangika property was wrong. He further contended when Baba Nona giftedthe property to the 2nd Petitioner no formal ceremony was performed andas such property cannot be defined as Sangika property. It was thecontention of the learned Counsel that even if the property was gifted toMaha Sanga if there was no formal ceremony, the property does not becomeSangika Property. To strengthen his contention he cited the case ofKampane Gunaratne TheroVs. Mawadawila Pannasena Thero whereHon. Chief Justice G. P. S. de Silva held that, “As the deed of dedicationhad not been accompanied by a solemn ceremony in the presence of 4 or
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more monks representing the ‘Sarva Sanga’ or entire priesthood’ asprescribed in vinaya, the temple and it’s property did not become Sangikaproperty. The title to the property remains with the State. In other wordsproperty remains Gihi Santhakd’. The above judgmenrwas distinguishedby Hon. Justice Bandaranayake in the case of Ven. Omare DharmapalaThero Vs. Rajapaksege Peiris and Others Bandaranayake J at 15remarked that “offerings to a temple could include a rupee coin put into atill box or offerings such as bed sheets, plates, cups etc. for the use ofpriests. In each of these instances, the dedication may not be accompaniedby a solemn ceremony in the presence of 4 or more priests who representssarva sanga or entire priesthood with the ceremony of pouring water. Doesthis mean, purely because of the absence of such a ceremony, thededication to the temple by a devotee would remain as gihi santhakadepriving him of his devotion and acquiring the merits of his benefaction? Ido not think so. Such an interpretation would deprive the good intention ofa devotee who has no intention of retaining the ownership of what he hasalready donated to the temple".
As pointed out earlier, Baba Nona by deed P1 donated the property tothe 2nd petitioner who was a priest and to Maha Sanga. In the case beforeus, if the contention of the learned Counsel for the petitioner is to beaccepted, we would be depriving Baba Nona from acquiring merits of herbenefaction. Can we do it here at these proceedings without having thebenefit of reading Baba Nona’s evidence ? The answer is clearly ‘No’.
In Omare Dharmapala Thero Vs Rajapakshalage Peiris and Others(supra) Bandaranayake J at 16 further stated that “when this case isexamined in the light of aforementioned facts and circumstances, it isclear that there is no material to indicate that at the time the property waspurchased on behalf of the temple, there was no such ceremony to dedicatethe said property to the sarva sanga according to the vinaya. Howeversangika dedication is not the only mode of acquisition of property by atemple. A temple could acquire property by the ordinary civil modes ofacquisition without a ceremony conducted according to the vinaya ashappened in this case".
When the facts of the present case are considered wit.i theaforementioned legal principles in Omare Dharmapala Thero’s Case (supra),the contention of the learned Counsel for the Petitioner that when the
Skyspan Asia (pvt) Ltd and Others
property is gifted to Maha Sanga, without a formal ceremony beingconducted that it does not become Sangika Property, is untenable.
For the above reasons, I dismiss the application of the petitioners.There will be no costs.
SRIPAVAN, J-1 agree.
REV. MAUSSAGOLLE DHARMARAKKITHA THERO AND ANOTHER vs. REGISTRAR LANDS AND